Dhara Singh Vs. District Judge, Meerut
& ANR  INSC 181 (18 August 1967)
18/08/1967 SIKRI, S.M.
CITATION: 1968 AIR 227 1968 SCR (1) 243
D 1976 SC2184 (20)
Uttar Pradesh Kshettra Samitis and Zilla
Parisads Adhinayam (33 of 1961), and Settlement of Election Disputes Rules,
1962, rr. 37, 39, 40 and 43, and Schedule II, Instruction 1--Returned
Candidate--Defences open when election challenged--'Exhausted Paper', meaning
Election for the office of Pramukh of a block
was held under the provision of the Uttar Pradesh Kshettra Samitis and Zilla
Parishads Adhinayam, 1961. On one of the ballot papers, the second respondent
had a third preference recorded in his favour and a second preference in favour
of another candidate who was eliminated at one stage. The Returning Officer did
not count the third preference in favour of the second respondent and found at
the final counting that the appellant and the second respondent had secured an equal
number of votes. He therefore drew a lot as per the Instructions in Schedule II
and declared the second respondent duly elected. The appellant then filed an
election petition on various grounds before the District Judge who dismissed
it, holding that the Returning Officer erred in not crediting the second
respondent with the third preference and that if that was done there was no
necessity for drawing lots at all and that the second respondent should have
been declared elected as a result of the counting itself. The appellant's writ
petition challenging the District Judge's order was dismissed.
In appeal to this Court he contended that:
(1) under rr. 37 and 39 the trial of an election petition takes place in two
parts; first, to judge whether the returned candidate's election is void and
then to decide whether any other candidate should be declared to be duly
elected, that it was only in the latter case the returned candidate had the
right to claim that ballot papers not already counted in his favour should be
so counted, and that therefore, the District Judge had no jurisdiction to count
the ballot paper containing the third preference in favour of the second
respondent; and (2) the ballot paper was an 'exhausted paper' within
Instruction 1(5) of Schedule II to the Rules, and that therefore the District
Judge erred in law in counting it in favour of the second respondent.
Held: (1) The District Judge was entitled, to
go into the question whether the uncounted' ballot paper should have been
counted in favour of the second respondent. [249G] According to r. 37(a) read
with r, 40 which generally applies the procedure in the Civil Procedure Code to
the trial of election petitions under the Act, and r. 43 which deals with the
findings of the trial Judge, the returned candidate can take any defence to
show that he has been validly elected. He could therefore allege and prove that
certain votes should have been counted in his favour.
[249E--G] Jabar Singh v. Genda Lal,  6
S.C.R. 54, explained.243 244 (2) The fact that the Candidate with the second
preference in the uncounted ballot Paper *as eliminated at one stage, did not
make the ballot paper-an 'exhausted paper' within the definition in the Rules.
The second respondent was a continuing candidate, as per the Rules, and there
was a preference recorded for him on the ballot paper arid the District fudge
was right in holding that it should have been counted in his favour, by the
Returning Officer. [250A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2232 of 1966.
Appeal by special leave from the judgment and
order dated July,22, 1965 of the Allahabad High Court in Civil Misc.
Writ Petition No. 75 of 1964.
S. C. Agarwala, Anil Kumar and Shiva Pujan
Singh, for the appellant.
B. D. Sharma, for respondent No. 2.
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed against the judgment of the
Allahabad High Court dismissing the writ petition under Art. 226 of the
Constitution filed by Dhara Singh, appellant before us. Dhara Singh had prayed,
for a writ, order or direction in the nature of certiorari quashing the
judgment of the District Judge, Meerut, dismissing the election petition filed
by Dhara Singh challenging the election of Pitam Singh to the office of Pramukh,
Block Jani, on July 8, 1962.
Two points were raised before us: first, that
the District Judge had no jurisdiction to count ballot paper No. 0045 in favour
of Pitam Singh and that the returned candidate had no right to claim that
ballot papers not already counted in his favour should be so counted-, and
secondly, that, at any rate, the District Judge erred in law in counting ballot
paper No. 0045 in favour of Pitam Singh.
The relevant statutory provisions are as
follows: The election is governed by the provisions of the U.P. Kshettra
Samitis (Election of Pramukhs and Up-Pramukhs and Settlement of Election
Disputes) Rules, 1962-hereinafter called the Rules. Rules 37, 39, 40, 43 and 44
are as follows:
"37. Relief that may be claimed by the
petitioner A petitioner may claim either of the following declarations-- (a)
that the election of the returned candidate is void;
(b) that the election of the returned
candidate is void and that he himself or any other candidate has been duly
39. Recrimination when seat claimed--When in
an election petition a declaration that any candidate other than the returned
candidate has been duly elected is claimed, the returned candidate or any other
party may give evidence to prove that the election of such candidate would have
been void if he had been the returned candidate and a petition had been
presented calling in question his election.
40. Procedure-(1) Except so far as provided
by the Act or in these Rules, the procedure provided in the Civil Procedure Code.
1908, in regard to suits, shall in so far as it is not inconsistent with the
Act or any provisions of these Rules and it can be made applicable, be followed
in the hearing of the election petitions:
Provided that- (a) any two or more election
petitions relating to the election of the same person may be heard together;
(b) The Judge shall not be required to record
or to have recorded the evidence in full but shall make a memorandum of the
evidence sufficient in his opinion for the purpose of deciding the case;
(c) the Judge may, at any stage of the
proceedings, require the petitioner to give further cash security for the
payment of the costs incurred or likely to be incurred by any respondent;
(d) for the purpose of deciding any issue the
Judge shall be required to order production of or to receive only so much
evidence, oral or documentary, as he considers necessary;
(e) no appeal or revision shall lie on a
question of fact or law against any decision of the Judge;
(f) the Judge may review his decision on any
point on an application being made within fifteen days from the date of the
decision, by any person considering himself aggrieved thereby, (g) no witness
or other person shall be required to state for whom he has voted at an
(2) The provisions of the Indian Evidence
Act, 1872 (Act No.1 of 1872) shall be deemed to apply in all respects to the
trial of an election petition.
(3) B fore the hearing of an election
petition commences or before the final hearing takes place the petition may be
withdrawn by the petitioner or the petitioners, as the case may be, by making
an application to the Judge requesting for the withdrawal of the petition 246
and upon the making of such an application the petition shall stand withdrawn
and no further action shall be taken for its, trial.
43. Findings of the Judge-(1) If the Judge
after making such inquiry as he deems fit finds in respect of any person whose
election is called in question by a petition, that his election was valid he
shall dismiss the petition as against such person and award costs at his
(2) If the Judge finds that the election of
any person was invalid he shall either- (a) declare a casual vacancy to have
been created, or (b) declare another candidate to have been duly elected and in
either case may award costs at his discretion.
44. Grounds on which a candidate other thin
the returned candidate may be declared to have been elected-If any person who
has lodged an election petition has, in addition to calling in question the election
of the returned candidate, claimed a declaration that he himself or any other
candidate has been duly elected and the Judge is of the opinion that in fact
the petitioner or such other candidate received a majority of the valid votes,
the Judge shall after declaring the election of the returned candidate to be
void, declare the petitioner or such other candidate as the case may be, to
have been duly elected:
Provided that the petitioner or such other
candidate shall not be declared to be duly elected if it is proved that the
election of such candidate would have been void if he had been the returned
candidate and a petition had been presented calling in question his
election." Relevant part of Schedule 11 to the Rules is as follows:
"Schedule II--Instructions for the
Determination of Result.
1. In this Schedule- (1) the expression
'continuing candidate' means any candidate not elected and not excluded from
the poll at any given time;
(2) the expression first preference' means
the number 1 set opposite the name of any candidate' the expression 'second
preference' similarly means the number 2, the expression 'third preference' the
number 3 and so on;
247 (3) the expression 'next available
preference' means the second or subsequent preference recorded in consecutive
numerical order for a continuing candidate, preferences for candidates already
excluded being ignored;
(4) the expression 'unexhausted paper' means
a ballot paper on which a further preference is recorded for a continuing
(5) the expression 'exhausted paper' means a
ballot paper on which no further preference is recorded for a continuing
candidate; provided that a paper shall be deemed to be exhausted in any case in
which- (a) the names of two or more candidates whether continuing or not are
marked with the same figure. and are next in order of preference; or (b) the
name of the candidate next in order of preference whether continuing or not, is
marked by a number not following consecutively after some other number on the
ballot paper or by two or more numbers." The relevent facts are that
election for the office of Pramukh of Block Jani was held on July 8, 1962,
under the provisions of Uttar Pradesh Kshettra Samitis and Zila Parishads
Adbiniyam, 1961 (U.P. Act No. XXXIII of 1961)- hereinafter referred to as the
Act. At the said election following six persons were the candidates:
1. Shri Dhara Singh
2. Shri Pitam Singh
3. Shri Mahabir Singh
4. Shri Sham Singh
5. Shri Kalloo Singh
6. Shri Budh Singh After following the
instructions contained in Schedule II, the Returning Officer found that Dhara
Singh and Pitam Singh had obtained equal number of votes and chose to draw a
lot, and declared Pitam Singh as the elected candid-ate. Dhara Singh thereupon
filed an election petition under the Act and the Rules raising a number of
points. The District Judge, who heard the election petition, held that the
Returning Officer made a mistake in not crediting Pitam Singh with the third
preference in ballot paper No. 0045. The District Judge held:
"The only point that has to be seen is
whether this third preference should have been credited to Pitam Singh or not.
The definition of the expression 'next 248 available, preference' has already
been given above,Under Rule' 6(b) the sub parcels are to be arranged according
to the" next available preferences.The ballot paper does hot become
exhausted as long as ther e is a preference recorded in it for a continuing
candidate. Pitam Singh was a continuing candidate when the ballot papers cast
in favour of Shiam Singh,were to be arranged in sub parcels containing , the
exhausted and unexhausted ballot papers. The learned counsel for the petitioner
has contended before me that the third preference could not have been credited
in favour of Pitam Singh inasmuch as the second preference in favour of
Mahabira had not been utilised as he was the first to be excluded on the basis
of the first preference votes and his contention is that the third preference
cannot be taken into consideration. This contention to my mind has no force.
Under the scheme of the counting as provided in the instructions a voter could
have given his preference in the present case upto to six preferences as there
were six candidates who were seeking election. To my mind as long as there is any
preference in a ballot paper which has not been exhausted according to the
rules that preference has to 'be taken into consideration and to be credited,.
to the continuing candidate in whose favour the' preference is.
Consequently, to my mind the Presiding
Officer was in error when, he did not count the preference in favour of Pitam
Singh recorded in the ballot paper No. 0045. Crediting this preference to Pitam
Singh, we find that the total number of votes which he obtained comes to 20 as
against the total number of 19 in favour of Dhara Singh on the third counting
Thus, in this case to my mind there was no necessity for drawing the lots and
Pitam Singh should have been declared as elected as a result of counting itself
as there were only two continuing candidates and out of these continuing
candidates Pitam Singh had secured the larger number of votes." it is not
necessary to set Out the findings on other 'points which are no longer in issue
Dhara Singh then filed a writ petition under
Art. 226 of the Constitution challenging the declaration given by the Returning
'Officer and the order of the District Judge referred to above. The High Court
held that the District Judge was correct in allotting ballot paper No. 0045 to
Pitam Singh. The High Court also repelled the contention that the District
Judge was not entitled to take into account ballot paper No. 0045, and to award
it to Pitam Singh, because Pitam Singh had, not filed any recrimination in the
case in order to claim the benefit of the ballot paper. The 249 High Court was
of, the view that this was a case of rebuttal and not recrimination, as held in
the Full Bench decision of the Allahabad High Court in Nathu Ram v. R.P.
Dikshit(1) According to it the decision of this Court in Jabar Singh v.
Genda Lal(2) was not applicable to the facts
of the case.
It has been strongly contended before us by
the learned Singh v. Genda Lal(2) governs the, interpretation of the Rules. In
that case, this Court was, concerned, with the interpretation of ss.97,
100(1)(d) and 101(a) of the Representation of the People, Act (43 of 1951) and
r. 57(1) of, the, Conduct of Election Rules, 1961. We find that the terms of
those sections are different and, in particular, s. 100(1)(d) is materially
different because it uses the Words "that the result of the election; in
so far as it concerns a returned candidate, has been materially affected"
which do not occur in rr. 37 and 39. It was these words which were in part
relied on to limit the scope of the enquiry in cases arising under the
Representation of, the People Act. But the language of the rules here is simple
and quite different. It would be noticed that r. 37(a) is wide and no rule
prescribes the grounds on which the election of the returned candidate is to be
declared void. In this case we are not concerned with r. 37(b) or r. 39. But
the learned counsel for the appellant contends that reading rr. 37 and 39
together it is clear that the trial of the election petition takes place in two
compartments; first, to judge whether the returned candidate's election is void
and, then, to decide whether any other candidate should be declared to be duly
elected. He says that it is only in the latter case that any recrimination can
be made under r. 39. We are unable to agree with this contention. It seems to
us that according to r. 37(a), read with r. 40, which except for certain
sections, applies the procedure in the Civil Procedure Code, the returned
candidate can take any defence to show that he has been validly elected. If the
petitioner in the election petition can allege and prove that, some votes cast
in favour of the returned candidate should be rejected, there is no reason why
the returned candidate should not be able to allege and prove that certain
votes should have been counted in his favour. Rule 43 which deals with the
findings of the Judge also shows that the suggested limitation on his
jurisdiction does not exist.
It is not necessary to decide in this case
whether Nathu Ram v. R. P. Dikshit(1) was correctly decided or not.
Accordingly,we hold that the District Judge
was entitled to go into the question whether ballot paper No. 0045 should have
been counted in favour of Pitam Singh or not.
Coming to the second point, the learned
counsel contends that ballot paper No. 0045 was an "exhausted paper"
within the definition quoted above. The contention seems to be contrary (1)
A.I.R. 1965 All, 454.
(2)  6 S.C.R. 54, 250 to the definition
because the definition expressly says that a ballot paper on which no further preference
is recorded for a continuing candidate shall be an exhausted paper. On the
facts, of this case, Pitam Singh was a continuing candidate and there was a
preference recorded for him on ballot paper No. 0045. But the learned counsel
says that this was a third preference and the second preference on this paper
was for Mahabir Singh who was eliminated at one stage. Now, the fact that
Mahabir Singh was eliminated does not make the ballot paper an exhausted paper
within the definition given in the Rules. We agree with the conclusion of the
District Judge on this point.
In the result the appeals fails and is
dismissed. Under the circumstances there will be no order as to costs.
V.P.S. Appeal dismissed.